Kennedy v. Bruce, 19303.

• Decision Date: 14 March 1962
• Docket Number: No. 19303.,19303.
• Citation: 298 F.2d 860
• Parties: Robert F. KENNEDY, as Attorney General of the United States, et al., Appellants, v. William H. BRUCE, as a Member of and Chairman of the Board of Registrars of Wilcox County, Alabama, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.2d 860 (1962)

Robert F. KENNEDY, as Attorney General of the United States, et al., Appellants, v. William H. BRUCE, as a Member of and Chairman of the Board of Registrars of Wilcox County, Alabama, et al., Appellees.

No. 19303.

United States Court of Appeals Fifth Circuit.

February 5, 1962.

Rehearing Denied March 14, 1962.

Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., Gerald P. Choppin, Atty., Dept. of Justice, Washington, D. C., for appellants.

Gordon Madison, Asst. Atty. Gen., State of Ala., Blanchard L. McLeod, Camden, Ala., for appellees.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from an order of the District Court for the Southern District of Alabama which (1) granted appellees' motion to dismiss an application by the Attorney General of the United States for an order permitting the inspection of the voting records of Wilcox County, Alabama, and (2) denied the Attorney General's motion to dismiss the complaint in an action begun by the County Registrar in the State Court and removed to the Federal Court. The District Court's order thus dealt with two separate and distinct legal proceedings. They both arose following action by the then Acting Assistant Attorney General of the United States taken on May 9, 1960, pursuant to Section 303 of the Civil Rights Act of 1960, 42 U.S.C.A. § 1974b. On this date the federal official wrote to the Board of Registrars of Wilcox County requesting that he or his representative be permitted to inspect "all records and papers in your custody, possession or control relating to any application, registration, payment of poll tax, or other act requisite to voting in any general, special, or primary election in which candidates for the office of President, Vice President, Presidential Elector, Member of the Senate or Member of the House of Representatives of the United States, are voted for." The letter further stated, in compliance with the requirements of the statute,

"This demand is based upon information in the possession of the Attorney General tending to show that distinctions on the basis of race or color have been made with respect to registration and voting within your jurisdiction.

"The purpose of this demand is to examine the aforesaid records in order to ascertain whether or not violations of Federal law in regard to registration and voting have occurred."

THE STATE COURT PROCEEDING

On May 20, 1960, an action was commenced by the Board of Registrars of Wilcox County, Alabama, in the Circuit Court of Wilcox County against the Attorney General of the United States: the Acting Assistant Attorney General of the United States, Civil Rights Division; the United States Attorney for the Southern District of Alabama; and various FBI agents. The plaintiffs requested declaratory relief and an injunction to restrain the defendants from attempting to enforce the demand for voting records which was made on May 9, 1960. The State court granted a temporary injunction in accordance with the prayer. On June 3, 1960, the Attorney General, acting under 28 U.S.C.A. § 1442, removed the case to the United States District Court for the Southern District of Alabama, and on June 7, 1960, moved to dismiss the removed action.

On June 13, 1961, this motion came on for hearing in District Court, and on September 28, 1961, the courts issued an order, unaccompanied by an opinion, denying the Attorney General's motion to dismiss.

APPLICATION FOR VOTING RECORDS

On August 30, 1960, the Attorney General filed in the United States District Court for the Southern District of Alabama, an application for an order, pursuant to section 305 of Title III of the Civil Rights Act of 1960 (42 U.S.C.A. § 1974d, 74 Stat. 88) requiring the Board of Registrars of Wilcox County, Alabama to permit the Attorney General to inspect the voting records of that county. On September 8, 1960, appellees moved to dismiss the Attorney General's application for an enforcement order. Among other grounds for dismissal, the motion alleged,

"* * * it appears from affidavits now in possession of the Court that no basis exists in Wilcox County for the production of the records sought for no Negroes have applied for registration in said County.¹

This motion was heard by the District Court on June 13, 1961, and on September 28, 1961, the court issued an order, unaccompanied by an opinion, granting the motion.

On December 4, 1961, appellants filed with this Court a motion for summary reversal asserting that the orders of the trial court were so clearly erroneous under the prior decisions of this Court in State of Alabama ex rel. Gallion v. Rogers, Attorney General, and In re Dinkens, 5 Cir., 285 F.2d 430, affirming 187 F. Supp. 848, as not to warrant further consideration by this Court. Instead we accelerated the setting of the case by placing it on the next available calendar for argument and submission.

First, as to the refusal of the trial court to dismiss the complaint against the Attorney General filed in the State Court, we are unable to find any conceivable justification supporting the trial court's action. Nine months prior to the entry by the trial court of this order denying dismissal, this Court in State of Alabama ex rel. Gallion v. Rogers, Attorney General, supra, expressly adopted the opinion of Judge Johnson, United States District Judge for the Middle District of Alabama, and affirmed his order and the reasons producing it as published in 187 F.Supp. 848. Thus, just as plainly as it could be said, we have decided that the State of Alabama had no power to entertain a suit seeking to review the discretion of or enjoin the acts of the Attorney General of the United States. If this were the only issue here on appeal the motion for summary reversal might appropriately be granted. In any event we hold expressly that such an action as that...